REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA CIVIL CASE NO. E203 OF 2025 IVONE WANGA…………………………………………..……...………..PLAINTIFF VERSUS ANDREW OMONDI OWINO……………………….………. ………………….DEFENDANT JUDGMENT 1. The Plaintiff sued the Defendant through a Plaint dated 07 th May 2025 seeking judgment against the Defendant for: a) General damages b) Special damages of Kshs. 10,750/= c) Costs of this suit d) Interest on (a), (b) and (c) above e) Any other relief as this Honourable Court may deem fit to grant 2. The Plaintiff pleaded that the cause of action herein arose on 27 th March 2025 while he was a lawful fare-paying passenger aboard motor vehicle registration number KCV 288 P (“the motor vehicle”) along Bungoma – Mumias road at Sibembe area when the motor vehicle lost control and rolled, thereby causing him severe bodily injuries, loss, and damage, hence this suit. 3. It was also pleaded by the Plaintiff that the accident herein was solely caused by negligence by the Defendant and the Defendant’s driver as enumerated in paragraph 5 of the Plaint. 4. The Defendant entered appearance and filed a Statement of Defence denying all the averments in the Plaintiff’s Plaint save for an admission of this court’s jurisdiction to hear and determine this matter. 5. Further, the Defendant pleaded that if the accident herein occurred, then the same was caused by the Plaintiff’s negligence. The Defendant urged this court to dismiss this suit with costs.
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6. It is against this backdrop that this court set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. EVIDENCE 7. On 02nd December 2025, the parties herein recorded a consent admitting the Plaintiff’s witness statement on record as the Plaintiff’s evidence in chief and the Plaintiff’s documents on record as exhibits. 8. The parties herein also selected Bungoma CMC CC No. E215 of 2026 as the test suit on liability in respect to this case, as well as all the other cases arising from this accident. 9. This court assessed liability in the said test suit at 100% against the Defendant in favour of the Plaintiff. ANALYSIS AND DETERMINATION 10. Given the consent on record, the only issue for determination is quantum. Quantum of Damages (a) 11. General Damages for pain and suffering The injuries pleaded by the Plaintiff in paragraph 7 of her Plaint were corroborated by the uncontroverted medical evidence on record. 12. It is against this backdrop that this court finds and holds that the Plaintiff proved on a balance of probabilities that the accident caused her to suffer an open fracture of the right radius/ulna, and blunt injury to the right shoulder, which injuries were assessed as grievous harm. 13. The law on assessment of general damages in this jurisdiction, as espoused in Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, is that comparable injuries should be compensated by comparable awards.
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14. In Kenya Power Lighting Comp. Ltd & Another v Zakayo Saitoti Naingola & Another [2008] eKLR, Nambuye, J. (as she then was) listed the following principles on assessment of damages: a) Damages should not be inordinately too high or too low b) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. d) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment. 15.This court has given due regard to the guidelines in the authorities above, as well as the written submissions on record by the parties herein on quantum. 16. The injuries sustained by the Plaintiff herein are almost similar to the injuries suffered by Plaintiffs in the cases set out below. 17. In Mary Akinyi Atella v Omondi Beatrice Monica [2021] eKLR, the court awarded general damages of Kshs. 500,000/= for a fracture of the right ulnar shaft, and dislocation of the left elbow. 18. In Kairithia v Achieng (Civil Appeal E003 of 2025) [2026] KEHC 1902 (KLR), the High Court upheld an award of Kshs. 500,000/= for Injury to the back, chest tenderness, fracture of the right radial bone, swollen and bruised left knee joint, and stitched cut wound on the right leg. 19. In Real Insurance Company Limited & another v Maina (Civil Appeal E132 of 2024) [2026] KEHC 2340 (KLR), the High Court upheld an award of Kshs. 500,000/= made to the respondent who suffered a displaced fracture of the right radius, soft tissue injuries
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of the hand, haemotoma on the right thigh with other soft tissue injuries and soft tissue injuries of the forehead. 20. Guided by the authorities above, this court makes an award of Kshs. 500,000/= under this head. (b)Special Damages 21. The Plaintiff pleaded special damages of Kshs. 10,750/= in paragraph 7 of her Plaint. The claimed special damages comprised of Kshs. 2,000/= for treatment expenses, Kshs. 6,000/= for the medical report, Kshs. 2,000/= for filling the P3 form, Kshs. 200/= for the police abstract, and Kshs. 550/= for the motor vehicle search. 22. The police abstract herein was issued by a police officer. The Plaintiff’s P3 form was filled in a public hospital. Therefore, the Plaintiff cannot seek to recover from the Plaintiff the cost of filling public documents, which, as a matter of government policy, are to be issued and filled free of charge. If the Plaintiff paid public officers for free public services, he was engaged in an illegality that he cannot seek to benefit from. 23. In any event, the Plaintiff did not place before this court receipts to prove the claimed expenditure for filling the P3 form and the police abstract. 24. The Plaintiff produced an invoice dated 04th April 2025 from Bungoma County Referral Hospital for medical expenses of Kshs. 79,120/= to claim the medical expenses pleaded in the Plaint. 25. Parties are bound by their pleadings. The Plaintiff having pleaded for the medical expenses of Kshs. 2,000/= in her Plaint, she cannot purport to claim medical expenses of Kshs. 79,120/= through the invoice on record. 26. Be that as it may, in Total Kenya Ltd formerly Caltex Oil (K) Ltd v Janevams Ltd (2015) eKLR, the court cited Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority (2000) eKLR 720 on the production of proforma invoices, where the court stated thus:
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“What we mean is that, in case the goods for which an invoice is issued have been paid for, one would normally expect endorsements such as the word “paid” on the invoice and that would turn the status of the invoice into a receipt. Otherwise, in our minds, a proforma invoice is given in respect of an advice sought from a supplier as to what the cost of goods sought and an invoice is given in cases where an order for supply of goods has been made but payment is not yet made. In either case non of the two documents would amount to a receipt.” 27. The invoice relied upon by the Plaintiff in this case to claim the pleaded medical expenses was neither accompanied by a corresponding receipt nor stamped with the word “paid”. Therefore, the invoice on record cannot be used to claim the pleaded medical expenses. 28. The NTSA receipt proved the claimed expenditure of Kshs. 550/=, while the receipt by Dr. Sokobe proved the claimed fees of Kshs. 6,000/= for the medical report. 29. It is against this backdrop that this court awards the Plaintiff special damages of Kshs. 6,550/= DETERMINATION 30. The upshot of the above is that judgment is entered against the Defendant in the following terms: a) Liability…………………………………100% in favour of the Plaintiff b) General Damages…………………...…Kshs. 500,000/= c) Special Damages……………………....Kshs. 6,550/= Total Award………………..Kshs. 506,550/= 31. The General Damages will accrue interest at court rate from the date of this judgment till payment in full, while the Special Damages
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will accrue interest at court rate from the date of filing this suit till payment in full. 32. The Plaintiff will have the costs of this suit. 33. Judgment accordingly. Read, signed, and delivered in open Court at Bungoma this 28th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Chebet for the Plaintiff Mr. Choni for the Defendant C/A: Mr. Rioba
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